Grant v. Poillon.

cannot be extended to cases of law or equity, cognizable by the circuit and State courts, under the 11th section of the judiciary act. (1 Baldwin, 554.)

A contract between two persons, one of whom had chartered a vessel, whereby he was to act as master, and the other as mate of the vessel, and the two were to share equally in the profits of the contemplated voyages, was held not to be within the admiralty jurisdiction. (The Crusader, Ware's Rep. 437.) A distribution cannot be claimed in the admiralty, except by those who have a lien. (1 Pet. Ad. 223.)

The lumber company was formed to engage in an enterprise of shipping lumber to San Francisco. Twelve shares were taken by the company, consisting of ten persons, each having one share of the value of five hundred dollars, and two of them had two shares each, one of them being the master of the vessel. He was also a part owner of the vessel, the consignee of the cargo, and had a right of primage. As part owner of the vessel, he was entitled to his share of freight; and as being a member of the lumber company, having two shares in it, he was proportionately liable for the freight. In his capacity of master he was entitled to primage, and as consignee he was also entitled to compensation. Now, this individual, in interest, is both plaintiff and respondent, and has claims in his capacities of master, consignee, and agent. The proceeds of the sale of the cargo, after paying commissions, left a balance due for freight of $2,449.09.

Here is a complicated account to adjust, apportioning the loss between the members of the lumber company, exacting from them. what may be necessary, not only to pay the balance of freight due, but whatever may be required to discharge what may be due to the master as part owner of the ship, as master, consignee, or agent, at the same time holding him liable, as having two shares in the lumber company. And in an enterprise in which the whole of the capital has been sunk, leaving a large sum due for freight, it would seem that some inquiry might reasonably be made into the conduct of the master in the various capacities in which he acted. And it is probable that, to settle the controversy, a procedure against the members of the lumber company may become necessary, to compel them to contribute respectively and equally what may be necessary to meet the exigency. It is clear that the exercise of the powers indicated do not belong to a court of admiralty, but are appropriate to a court of chancery.

The decree of the circuit court is affirmed, with costs.

Hyde v. Stone.

JOHN E. HYDE et al., Plaintiffs in Error, v. HENRY L. STONE.

20 H. 170.

STATE AND FEDERAL COURTS-CONFLICT OF JURISDICTION.

1. Plaintiffs brought suit on a bill of exchange in the State court against defendant. The suit was removed to another State court, and homologated with other proceedings in insolvency against defendant. This constitutes no valid plea in bar or abatement of the present suit, brought afterwards in the United States court.

2. The question of notice of dishonor of the bill having been submitted to the court without a jury, its decision on that question cannot be reversed here.

THIS is a writ of error to the circuit court for the eastern district of Louisiana. The case is fully stated in the opinion.

Mr. Benjamin, for plaintiffs in error.

Mr. Taylor, for defendant.

* Mr. Justice CAMPBELL delivered the opinion of the court. [* 173] The defendant in error instituted his suit in the circuit

court, as the endorsee of a bill of exchange, payable in Boston, of which the plaintiffs in error were drawers, payees, and endorsers, and which bears date at New Orleans.

The defendants answered the petition, and averred that the plaintiff was a citizen of Louisiana, and the said bill of exchange a Louisiana contract, and governed by the law of that State. That the plaintiff resided in Louisiana when the defendants surrendered their property in insolvency in the third district court of New Orleans, and to the proceedings therein the plaintiff became a party. That, subsequently thereto, the said plaintiff instituted a suit on the said bill of exchange in the fifth district court of that city, and, on an exception filed by the defendants, informing that court of those facts, the same was sustained, and the said suit was transferred to the third district court of New Orleans, and made part of the aforesaid insolvent proceedings therein; by which the right of plaintiff to have and maintain this action in the circuit court is barred, and the question has become res judicata.

With this exception to the jurisdiction of the court, the defendants filed a general denial of their indebtedness to the plaintiff. The cause was submitted to the circuit court upon *an [174] agreed statement, and judgment was rendered for the

plaintiff without the intervention of a jury.

From that statement it appears that the bill was duly protested for non-payment; and the notary in Boston certifies, "I sent notice of the non-payment to the drawers and first endorsers, requiring

20h 170 L-ed 874 132 485

371 275

Hyde v. Stone.

payment of them, by mail, to New Orleans, on the day of the protest. That the plaintiff has always been a citizen of Massachusetts; that his family resided there, and he had a commercial establishment there; that he is a partner in a commercial establishment at New Orleans, and generally spent a portion of the winter months in that city, and then returned to Massachusetts; and that this bill was purchased in the city of New Orleans, on his own account. It further appears that the plaintiff, before the commencement of this suit, sued the defendant in the fifth district court of New Orleans on this bill; that the defendant appeared and answered that the fifth district court had no jurisdiction, because the defendant had made a surrender of his property to his creditors in the third district court of New Orleans, which surrender had been accepted, and all proceedings stayed against him; and that the plaintiff was put upon his schedule as a creditor; and he prayed that the suit of the plaintiff be transferred and cumulated with the insolvency proceedings in the third district court in New Orleans; that thereupon the fifth district court, before the commencement of the present suit, decreed that the exception herein filed be maintained, and the costs paid out of the mass of the property surrendered. It further appears that the plaintiff performed no act to make himself a party to the proceedings in insolvency in the third district court, and that no notice of those proceedings had ever been served on him; but that the bill of exchange described in his petition was enumerated among his debts, and the firm of H. L. Stone & Co., of New Orleans, which was supposed to be the holder of the bill, was placed on the schedule among the other creditors of the insolvents.

The question whether a foreign bill of exchange, sold by a merchant in New Orleans to a person who has a commercial house there, but whose domicile is at the place where the bill is payable, and where he resided when the proceedings in insolvency were instituted, is affected by them when he does not make himself a party to those proceedings, is not involved in this case. The defendant did not plead the pendency of those proceedings, or the decree of the third district court, as a bar to the present suit, or afford any proper description of them to raise that question. The excep

tion of the defendant is, that certain proceedings pending [*175] in the third district court were successfully pleaded in the fifth district court of New Orleans, as a cause for the removal of a suit commenced by the plaintiffs against the defendants in that court to the other, and that the decision of the fifth district court upon that plea ought to preclude the plaintiff from

Hyde v. Stone.

maintaining this suit in the circuit court of the United States. But this court has repeatedly decided that the jurisdiction of the courts of the United States over controversies between citizens of different States cannot be impaired by the laws of the States, which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power. In many cases, State laws form a rule of decision for the courts of the United States, and the forms of proceeding in these courts have been assimilated to those of the States, either by legislative enactment or by their own rules. But the courts of the United States are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction. (Suydam v. Broadnax, 14 Pet. 67; Union Bank v. Jolly's Adm'rs, 18 How, 503.)

It follows, therefore, that the decision of the fifth district court of New Orleans, transferring the suit, commenced by the plaintiff on his bill against the defendants, in that court, and directing it to be cumulated with the proceedings in bankruptcy which were pending in another court of the State, did not disable the plaintiff from commencing a suit in the circuit court, nor can it form a proper declinatory exception to its jurisdiction.

The plaintiffs in error object, that the evidence before the circuit court did not authorize the court to infer that they had notice of the dishonor of their bill. The notary states that he sent a notice. to them, at New Orleans, on the day that the protest was made. In addition to this evidence, it is shown that the bill, after its maturity, was enumerated among the debts of the plaintiff in error, on the schedule that was returned to the third district court; and that they successfully pleaded their return to the prosecution of a suit by the defendant in error in another court. A plaintiff may prove, by admissions of a defendant, that all the steps necessary to charge him as an endorser or drawer of a bill of exchange have been taken. Proof of a direct or conditional promise to pay after a bill becomes due, or of a partial payment, or of an offer of a composition, or of an acknowledgment of his liability to pay the bill, has been held to be competent evidence to go to a jury, of a regular notice of the dishonor of a bill, and to warrant a jury in presuming that a regular notice had been given. *(Thorn- [* 176] ton v. Wynn, 12 Wheat. 183; Rogers v. Stevens, 2 T. R. 713; Patterson v. Beecher, 6 J. B. Moore, 319; Campbell v. Webster, 2 M. G. Sc. 253; Union Bank v. Grimshaw, 15 La. 321; 3 Mort. N. S. 318.) The effect of such evidence in the particular

Leitensdorfer v. Webb.

case must be determined by the jury, and their decision cannot be reviewed by an appellate court. In the present case, the matter of fact was submitted to the circuit court, and its determination on this subject cannot form the ground of an exception here. Judgment affirmed.

EUGENE LEITENSDORFER and another, Plaintiffs in Error, v. JAMES J.

WEBB. 20 H. 176.

MILITARY GOVERNMENT IN CONQUERED TERRITORY-TRANSFER OF CASES TO NEW COURTS ORGANIZED BY LAW-SUIT BY ATTACHMENT.

1. It is a necessary incident to all conquests by military power that it should be permitted to organize a local government for the conquered territory.

2. This includes the power to establish temporary courts for the administration of justice.

3. The powers of these courts do not necessarily terminate with the cessation of hostilities, if the conquering power retains the sovereignty of the conquered territory. 4. Suits pending in such courts may, on the organization of civil government, be transferred by statute to the new courts so organized.

5. A traverse of the allegations of the affidavit on which a writ of attachment is issued, not affecting the justice of the claim, is usually, and in this instance, a plea in abatement, and by the 22d section of the judiciary act this court can have no jurisdiction of the ruling of the court in such an issue.

THIS is a writ of error to the supreme court of the territory of New Mexico; and the case is fully stated in the opinion.

Mr. Cushing and Mr. Gillett, for plaintiffs in error.

Mr. Polk, for defendant.

Mr. Justice DANIEL delivered the opinion of the court.

This case is brought before this court upon a writ of error to the supreme court of the territory of New Mexico.

[ * 177 ]

*Upon the acquisition, in the year 1846, by the arms of the United States, of the territory of New Mexico, the civil government of this territory having been overthrown, the officer, General Kearney, holding possession for the United States, in virtue of the power of conquest and occupancy, and in obedience to the duty of maintaining the security of the inhabitants in their persons and property, ordained, under the sanction and authority of the United States, a provisional or temporary government for the acquired country. By this substitution of a new supremacy, although the former political relations of the inhabitants were dis